Can We Break Our Lease

The Situation Our landlord has been non-existent when a need arises but that is not why we want to break the lease. We rented our home in February of 2016. We have just been informed that he stopped paying the mortgage in November of 2015. The home is now in foreclosure. Did he not have a obligation to tell us? Also, in NY, it is our understanding our security deposit is supposed to be in a bank account and a receipt is supposed to be provided. This was never done and he will not answer when we ask him where our security deposit is?

Asked on September 12, 2016 under Real Estate Law, New York

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

No, the home being in foreclosure does not allow you to break your lease: until the home is actually taken away from him (i.e. all during the foreclosure process, until the end), he still has possession; is still legally capable of giving you possession, and so is still in compliance with his obligations; and is still your landlord. When the home is taken away, then you can leave--at that point, since he will no longer be the legal owner, he cannot give you possession of the home, and if he can't give you possession, he will be in material (important or signficant) breach of his obligations. So you have to wait until he actually loses the home.
And no, he does not have any legal obligation to tell you that he is not paying his mortgage or that the bank is looking to foreclose on him, any more than a tenant has a legal obligation to say that he/she has lost his/her job and may run out of money to pay the rent in a few months. One person has no obligation to warn another of what might or could or even will happen in the future.


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